Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 69478
ROBIE, J.
In this case concerning medical insurance coverage, plaintiff David E. Henderson (Henderson) sued defendants United Insurance Companies, Inc. (United Insurance), Mega Life and Health Insurance Company (Mega), National Association for the Self-Employed (the Association), and Caroll Nast for intentional misrepresentation (fraud), negligent misrepresentation, and violations of the unfair competition law (Bus. & Prof. Code, § 17200 et seq.).
We have described only the causes of action that remained by the time of summary judgment and judgment on the pleadings and that are challenged on appeal.
The trial court granted summary judgment and judgment on the pleadings in favor of defendants finding, among other things, there were no misrepresentations regarding the insurance Henderson purchased based on the admissible evidence and ruling that Henderson could not amend his complaint regarding his cause of action for violations of the unfair competition law.
On appeal from the subsequent judgment, Henderson contends the trial court abused its discretion in excluding portions of his evidence, and the trial court erred in its substantive rulings on summary judgment and judgment on the pleadings.
We conclude the trial court did not abuse its discretion in excluding Henderson’s evidence and summary judgment and judgment on the pleadings were proper. As we will explain, there were no triable issues of fact regarding misrepresentations or misleading statements regarding the policy, and the trial court did not abuse its discretion in denying Henderson’s leave to amend his complaint regarding the unfair competition cause of action. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On review of summary judgment in the defendants’ favor, we independently examine the record to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In performing this de novo review, we must “view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his] evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.” (Id. at p. 768.) We do not, however, consider any evidence to which objections were made and sustained. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66.) Employing these standards, the following facts appear from the record:
In part I of the Discussion we will explain why the court did not abuse its discretion in sustaining objections to Henderson’s evidence.
In December 1999, David Henderson and his wife, Darlene, allowed their insurance with Foundation Health National Life Insurance Company to lapse because they wanted to shop around for coverage with other companies.
In February 2000, after the Hendersons applied for insurance through Blue Cross of California, Blue Cross informed them they were ineligible.
In March 2000, Blue Cross denied the Hendersons’ request for reconsideration.
In April 2000, Darlene Henderson had a mammogram that revealed an abnormal micro calcification in one of her breasts, which was possibly cancerous.
Days after the mammogram, Henderson called a telephone number he saw on a “roadside sign” advertising “‘affordable health insurance for the self-employed.’” He spoke with Nast, who was an agent of Mega and enroller for the Association, about the possibility of purchasing health insurance.
On April 29, 2000, Nast met with the Hendersons for over three hours “to discuss the options and benefits of Mega insurance and the benefits of joining the [Association].” Henderson told Nast he intended to purchase “catastrophic coverage.” Nast told him about a group health insurance certificate through Mega. He recommended a “middle level of coverage,” which he said was adequate, along with a set of “riders,” which he said were “good values.” Nast recommended that Henderson should apply his premium dollars toward things that could be really expensive, such as chemotherapy, rather than toward things such as an increased “room benefit amount.”
The certificate recommended by Nast provided the following: coverage for hospital room and board was limited to $300 per day; coverage for intensive care was limited to $900 per day; coverage for inpatient charges were limited to 80 percent up to a $12,000 maximum; coverage for outpatient surgery was limited to 80 percent up to a $1,500 maximum; coverage for surgery was limited to $12,000; coverage for assistant surgeons and anesthesiologists were based on a percentage of the surgery benefit; coverage for doctors’ visits was limited to a certain amount per day; and coverage for ambulance charges was limited to a certain amount per trip. The maximum lifetime benefit was $1 million, and there was an exclusion for coverage based on losses resulting from preexisting conditions that first manifested within one year of the certificate’s effective date. Nast “went through the whole deal, the whole forms, page by page, question by question.”
The documents Nast used to make his presentation to Henderson were created by Mega and/or the Association. The documents gave Henderson assurance that he would have “catastrophic coverage based on usual and customary charges.”
On the same day as the presentation, Nast completed an application for the Hendersons’ membership in the Association and an application for health insurance, which the Hendersons signed.
On June 1, 2000, Mega issued the certificate to the Hendersons. The certificate contained a clear schedule of benefits that reflected the level of coverage that Nast had filled out for the Hendersons and contained the maximum limits of the coverage. The certificate stated that the Hendersons had 10 days to review it and they could return it for any reason if they were not satisfied and would receive a full refund of premiums paid. Knowing this, Henderson did not change anything or return the certificate.
Ultimately, Darlene Henderson developed breast cancer and Mega excluded her from coverage due to her medical history. After Darlene Henderson’s coverage was dropped, Henderson’s premium was $220 per month.
While he was insured by Mega, Henderson had one abdominal surgery and two colon surgeries. Although Mega covered some of the costs of the surgeries, Henderson was dissatisfied with the amount covered.
Henderson terminated his coverage in November 2001, which was one month before his monthly premium was set to increase to $263.
In June 2004, Henderson filed a complaint against defendants for “fraudulent and deceptive sales and advertising of health insurance and their subsequent breaches of the policy” that resulted in his unpaid medical bills. In Henderson’s view, defendants led him to believe that the Association was a nonprofit group that independently evaluated insurance policies to negotiate the best insurance for its members and that he was receiving “catastrophic coverage.” The reality was that Mega was a wholly-owned subsidiary of United Insurance, United Insurance controlled the Association, and the Association existed to “maximize the defendants’ profits by facilitating the sale of Mega policies.” Henderson was never told that the Association was controlled by United Insurance, the only insurance the Association provided and endorsed were Mega’s policies, and the certificate did not “constitute catastrophic, major medical, or comprehensive health insurance.”
After defendants filed motions for summary judgment and judgment on the pleadings, the court granted the motions and entered judgment in favor of defendants. This appeal follows.
DISCUSSION
I
The Trial Court Did Not Abuse Its Discretion
In Excluding Certain Portions Of Henderson’s Evidence
Henderson contends the trial court erroneously excluded “nearly all” of his evidence because, according to Henderson, defendants did not show that he neither possessed nor could reasonably obtain evidence needed for trial. The premise on which Henderson bases the majority of his evidentiary arguments is flawed.
Henderson’s appellate briefs are based on the premise that at the summary judgment stage, he need not proffer currently admissible evidence, so long as he can make a showing that it would be admissible by the time he got to trial. He is wrong. A summary judgment motion “must be decided upon admissible evidence in the form of affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 638, citing Code Civ. Proc., § 437c, subd. (d), italics added.) Therefore, at the summary judgment stage, Henderson had to present admissible evidence showing that there was a triable issue as to any material fact. (Hayman, at p. 638.) On appeal, this court adheres to the majority view that we review a trial court’s final rulings on evidentiary objections for abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)
With these principles in mind, we turn to the evidence excluded by the trial court that Henderson claims on appeal should have been considered.
A
Deposition Of Robert Hughes
Henderson alleged that Robert Hughes was the president of the Association. Henderson offered as evidence a deposition taken of Hughes in June 2004 in a lawsuit filed by another plaintiff against Mega, the Association, and others. The trial court sustained defendants’ objections to the evidence, ruling it was “hearsay, including Evidence Code Sections 1290-1292.”
On appeal, Henderson contends the evidence should not have been excluded because Hughes’s deposition constituted a party admission and former testimony, and it could be used for impeachment. Henderson argues simply that he has met the requirement for admissibility for party admissions because Hughes “has long been [the Association]’s president,” he has met the requirement for admissibility for former testimony because it is not certain Hughes will be available for trial, and he has met the requirement for admissibility for impeachment evidence because if somebody testifies at trial contrary to the testimony in Hughes’s deposition, the deposition would be admissible.
This showing is insufficient. As the proponent of the evidence, Henderson has the burden of establishing the preliminary facts upon which admissibility of the evidence depends. (Evid, Code, §§ 400, 403, subd. (a).) Simply stating that Hughes was a party in the prior case, that Hughes might be unavailable for trial, and that the evidence might be admissible as impeachment does not satisfy Henderson’s burden. A “mere allegation or simple promise to prove facts at a later date” is simply “‘speculation, conjecture, imagination or guess work’” and does not constitute evidence for the purpose of assessing a summary judgment motion. (Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1014.) The trial court did not abuse its discretion in excluding this evidence.
B
The Association’s Tax Form, Speech By United Insurance’s Chairman, The Association’s Billing Statement, And Document Created By An Internal Division Of Mega
Henderson offered the following items as evidence: a tax form from 1983 filled out by the Association entitled, “Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code”; excerpts of a speech from United Insurance’s chairman to agents, employees, and shareholders; a billing statement from the Association to Fred Gehring; and a document created by an internal division of Mega. The trial court excluded this evidence, ruling, among other things, the evidence was improperly authenticated.
On appeal, Henderson contends the court erred in excluding the evidence because, among other things, “[a]uthenticating th[ese] document[s] at trial would be straightforward.” Henderson’s conclusory statements as to the documents’ admissibility do not make the evidence admissible for summary judgment purposes. (Lyons v. Security Pacific Nat. Bank, supra, 40 Cal.App.4th at p. 1014.) The trial court did not abuse its discretion in excluding this evidence.
C
Declaration Of Harrie L. Day
Henderson offered as evidence the declaration of Harrie L. Day for an opinion on the certificate. The trial court excluded the evidence “because [Day] does not qualify as an expert on the matters covered.”
According to the declaration, Day was a former vice-president and “Corporate Claim Director” of PennCorp Financial of Raleigh, North Carolina. Day currently is a “consultant specializing in insurance claims handling and other insurance matters related to health, disability and life insurance” and a member of the International Claim Association, where Day served on its “Individual Health Committee” from 1978 to 1980 and its “Fraud Committee” from 1992 to 1995.
The matters to be covered in this case, as framed by Henderson’s complaint, were whether defendants engaged in fraudulent and deceptive sales and advertising of health insurance and whether their breaches of the policy resulted in unpaid medical bills. To this end, Day’s declaration offered an opinion that the “certificate cannot reasonably be considered a ‘health insurance policy’”; “it would be a misrepresentation of fact to refer to the subject certificate as ‘health insurance’”; and the certificate “is written in a way to severely restrict and limit coverage.”
A witness is qualified to offer an expert opinion “if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720.) Here, the declaration does not show that Day was qualified to express an opinion on the matters to be covered. It does not explain what special knowledge Day possesses, other than to say that Day “specializ[es] in insurance claims handling and other insurance matters related to health, disability and life insurance.” It does not explain what Day did while vice-president and corporate claim director of PennCorp Financial or what Day did at the International Claim Association (other than serve on two committees) that might have qualified Day to explain the coverage here. In short, the declaration is bereft of an explanation of why Day would be an expert on the insurance coverage here. (See Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 386 [where the declaration submitted in favor of summary judgment failed to show that the treating doctor had any training, experience, or skill that would qualify him to give an opinion about a certain type of vaccine or causation issues, summary judgment had to be denied].) In light of Day’s scant qualifications, the trial court did not abuse its discretion in excluding Day’s declaration.
D
Improperly Cited Evidence In Henderson’s Points And Authorities
When ruling on the summary judgment motion on April 14, 2006, the trial court stated it would not consider facts unsupported by citation to “specific undisputed facts in the separate statements and [that] instead refer[ed] to the evidence itself . . . or fail[ed] to refer to any evidence at all.” This ruling came after the trial court’s December 9, 2005, order that the parties “amend their points and authorities and cite a numbered specific fact from the separate statement for each fact cited . . . .”
On appeal, Henderson contends the trial court’s ruling, which he believes elevated citation form over substance, was “arbitrary, capricious, and without a basis in reason.” We find no abuse of discretion.
Code of Civil Procedure section 473c requires any opposition papers to a summary judgment motion include “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed” and “any other material facts that the opposing party contends are disputed . . . followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (a)(3).)
The purpose of a separate statement is twofold: to afford due process to the opposing party by informing it of the evidence which must be disputed in order to defeat the motion, and to aid both trial and appellate courts in reviewing summary judgment motions by allowing them to determine quickly and efficiently whether material facts are disputed. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335, 337.) In regard to the requirement of a separate statement, it has been said that “‘it is no answer to say the facts set out in the supporting evidence or memoranda of points and authorities are sufficient. “Such an argument does not aid the trial court at all since it then has to cull through often discursive argument to determine what is admitted, what is contested, and where the evidence on each side of the issue is located.”’” (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30.) “A construction [of Code of Civil Procedure section 437c] permitting the court to disregard evidence not referenced in the moving party’s separate statement recognizes the most efficient manner for trial judges to use these statements of undisputed facts in ruling on motions for summary judgment.” (San Diego Watercrafts v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 314.) Facts stated elsewhere than in the separate statement need not be considered by the court. (Id. at p. 316.) “Whether to consider evidence not referenced in the moving party’s separate statement rests with the sound discretion of the trial court, and we review the decision to consider or not consider this evidence for an abuse of that discretion.” (Ibid.)
Here, the trial court’s December 2005 order that the parties “amend their points and authorities and cite a numbered specific fact from the separate statement for each fact” flows directly from principles discussed above. It was intended to prevent the parties and the court from having to ascertain whether the “fact” cited without reference to the separate statement was indeed included in the separate statement, and whether it was material, disputed, and had evidentiary support. Despite Henderson’s arguments to the contrary, the court’s order was clear and he failed to comply with it. We cannot say the trial court’s ruling disregarding the evidence cited by Henderson violating the order, having given him the opportunity to amend his pleading to cure the defect, was an abuse of discretion. As Henderson concedes, his failure to amend his points and authorities to cite the separate statement instead of citing directly to evidence led the trial court to disregard his “entire case with respect to the [Association]’s independence, nonprofit status, independent selection of Mega policies for its insureds, and negotiation of low cost group premiums on its members’ behalf.” We therefore need not consider these aspects of his case further.
The trial court also disregarded Henderson’s case as to these issues because the evidence Henderson cited in support of them were inadmissible for the reasons discussed in parts IA through 1C of the Discussion.
II
Summary Judgment As To Intentional Misrepresentation And Negligent Misrepresentation Was Proper
Henderson contends the trial court erred in granting summary judgment on the intentional misrepresentation and negligent misrepresentation causes of action. As to defendants Mega, the Association, and Nast, Henderson contends there are triable issues of fact on whether there were misrepresentations because Nast failed to disclose that the policy he was selling did not provide catastrophic health insurance coverage. Henderson further contends that even if there were no misrepresentations, there was a triable issue of fact on whether he stated a cause of action for fraud because Nast’s comments were likely to mislead.
The elements of intentional misrepresentation are: misrepresentation (false representation, concealment, or nondisclosure); knowledge of falsity (or scienter); intent to defraud (i.e., to induce reliance); justifiable reliance; and resulting damage. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184-185.) The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation, the plaintiff need not allege the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true. (Ibid.)
Implicit in Henderson’s argument that Nast failed to disclose that the policy he was selling did not provide catastrophic health insurance coverage is the premise that there is but one meaning of “catastrophic coverage,” and therefore Henderson and Nast must have had in mind a common understanding of the term. This premise is incorrect. In the trial court, Henderson did not provide evidence of what he meant by “catastrophic coverage.” The trial court provided one definition: coverage that protects against “a serious medical condition of a severe nature either caused by an accident or disease.” In Henderson’s opening brief, he provides another: coverage that protects from a “‘financially ruinous’” illness. In Nast’s brief, noting that the term is “susceptible of numerous meanings,” Nast provides yet another: coverage that provides for “‘life threatening and . . . expensive treatment.’” Given these different definitions of “catastrophic coverage,” we disagree with the implied premise underlying Henderson’s argument that “catastrophic coverage” has a single, universally-understood meaning.
Given that the term is susceptible of different meanings, the question then becomes whether Nast had a duty to clarify what Henderson meant by “catastrophic coverage.” If he did, then summary judgment in favor of Nast, Mega, and the Association on these causes of action was improper. If he did not, then summary judgment on these causes of action was proper. To answer this question, we turn to an insurer’s duty.
The scope of an insurer’s duty usually is a question of law for the court to decide. (Fitzpatrick v. Hayes (1997) 57 Cal.App.4th 916, 920.) Ordinarily, an insurance agent assumes only those duties normally found in any agency relationship, including the obligation to use reasonable care, diligence, and judgment in procuring the insurance requested by an insured. (Jones v. Grewe (1987) 189 Cal.App.3d 950, 954.) The mere existence of this relationship imposes no duty on the agent to advise the insured on specific insurance matters. (Ibid.) “‘An agent may point out to [the insured] the advantages of additional coverage and may ferret out additional facts from the insured applicable to such coverage, but he is under no obligation to do so.’” (Ibid.)
Nevertheless, an agent may assume a special duty toward the insured under a variety of circumstances, including by holding himself out to be more than an ordinary agent. (Jones v. Grewe, supra, 189 Cal.App.3d at pp. 954-955.) Relying on one such case finding a special duty (Paper Savers, Inc. v. Nacsa (1996) 51 Cal.App.4th 1090, 1094), Henderson contends Nast had a special duty toward him. As we will explain, Paper Savers does not help Nast because Henderson did not allege facts that he told Nast the specifics of the coverage he was requesting.
In Paper Savers, the appellate court explained that although the onus is on the insured to inform the agent of the insurance he requires, an agent may assume a special duty toward the insured by misrepresenting policy terms. (Paper Savers, Inc. v. Nacsa, supra, 51 Cal.App.4th at pp. 1096-1097.) Under the facts of the case, the court explained that, “Peltier [the insured] allege[d] Nacsa [the agent] made statements which led Peltier to believe the ‘replacement cost coverage’ endorsement the agent recommended was adequate to replace all his equipment in the event of a total loss. This allegation t[ook] the case out of the ordinary general duty of care and trigger[ed] a greater and special duty to the insured as a result of the insurance agent’s alleged representations.” (Id. at p. 1101.)
Here, Henderson concedes that he “does not go nearly as far as [did the insured in Paper Savers] to allege that Mega promised him ‘full coverage.’” Henderson simply alleges that after he told Nast he wanted “catastrophic coverage,” Nast recommended a “middle level of coverage,” which Nast said was adequate, along with a set of “riders,” which he said were “good values” and recommended Henderson apply his premium dollars to things that could be really expensive, such as chemotherapy. Nast’s words describing the coverage as adequate or riders as “good values” were statements of opinion as opposed to fact and are therefore not actionable misrepresentations. (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 835.) And that Nast may have not had the same understanding as Henderson on what constituted “catastrophic coverage” does not make his conduct actionable. In short, a misunderstanding is not a misrepresentation.
A more appropriate analogy can be found in Malcom v. Farmers New World Life Ins. Co. (1992) 4 Cal.App.4th 296. There, the insured asked the agent about the effects his earlier treatments for depression might have on the policies’ scope of coverage. (Id. at p. 303.) The agent replied the decision was up to the underwriter. (Id. at p. 304) The agent did not recall telling the insured about the provision in the policy barring benefit claims if the insured were to commit suicide within the first two years of the policy. (Ibid.) The insured purchased the policy and within two years committed suicide. (Id. at p. 299.) His estate argued that the agent had an affirmative duty to point out the suicide provision and explain its effect on the insured. (Id. at p. 300.) The appellate court disagreed and explained as follows: “The mere fact when applying for the policies [the insured] asked [the agent] about the effect his treatment for depression might have on his application did not impose upon [the agent] an affirmative duty to advise him specifically about the suicide provision and its effect on coverage. The record contained no evidence suggesting [the insured] asked [the agent] for coverage for all suicide-related death or asked [the agent] whether the policies would cover suicide-related death. Neither did the record contain evidence suggesting [the insured] sought clarification of the suicide provision after receiving the policies. In sum, there was no evidence suggesting [the agent] knew [the insured] entered the transaction under a mistaken belief the policies would cover all suicide-related death.” (Id. at p. 304, fn. omitted.)
Similarly, Henderson’s statement to Nast that he wanted “catastrophic coverage” did not impose upon Nast a duty to clarify with him what Henderson meant by that term. The record contains no evidence that Nast should have known that he and Henderson might have had a different understanding of the term; that Henderson wanted a policy that would fully cover him in the case of an illness or was sufficient to fully cover things like daily hospitalization costs; that Nast knew Henderson was entering into the transaction under a mistaken belief that the certificate would fully cover him in the case of an illness; or that Henderson sought clarification of the certificate terms on the issue of coverage when he received the policy.
On this record, having found Nast had no duty to clarify what Henderson meant by “catastrophic coverage,” it follows that Nast had no duty to disclose to Henderson things such as the alleged inadequacy of the policy limits to fully cover major hospital charges and daily hospital stays. We therefore agree with the trial court that there were no misrepresentations (either by affirmative statements or omissions) and summary judgment in favor of defendants Nast, the Association, and Mega was proper on the intentional misrepresentation and negligent misrepresentation causes of action.
Henderson’s argument regarding Nast’s omissions relates solely to the intentional misrepresentation cause of action because the negligent misrepresentation cause of action requires a positive assertion. (Wilson v. Century 21 Great Western Realty (1993) 15 Cal.App.4th 298, 306.)
Since we have resolved the issue of summary judgment regarding intentional misrepresentation and negligent misrepresentation on the grounds that there were no misrepresentations or omissions, we need not reach the issues raised in Henderson’s opening brief relating to justifiable reliance, improper determination of Henderson’s credibility, or erroneous exclusion of evidence relating to collusion with respect to intentional misrepresentation, including failure to consider the declaration of former Mega agents.
This leaves the intentional misrepresentation and negligent misrepresentation causes of action against United Insurance. Henderson claims that the trial court erred in granting summary judgment based on its improper exclusion of evidence showing that United Insurance was “merely a holding company,” it had a role in selling the Hendersons’ certificate, and “it participated in fraudulent conduct that injured the Hendersons” by acting in concert with the other defendants. As stated in part I of the Discussion, we found no abuse of discretion in the trial court’s evidentiary rulings and as stated in part II of the Discussion, we found no intentional or negligent misrepresentation. Therefore, Henderson’s argument relating to these causes of action fails.
III
The Trial Court Did Not Abuse Its Discretion In Refusing Henderson Leave To Amend His Cause Of Action Regarding The Unfair Competition Law
Henderson contends that the trial court abused its discretion in refusing to grant him leave to amend his cause of action for violations of the unfair competition law.
In his complaint Henderson alleged “[a]mong other things” that defendants acted in concert to permit Mega, the Association, and Nast to make fraudulent misrepresentations so that Henderson and other Association members would join the Association and purchase Mega’s insurance policies that provided minimal coverage, and he sought an injunction to enjoin such practices.
Defendants moved for judgment on the pleadings because, among other things, Proposition 64 barred Henderson’s claim because he failed to meet class certification requirements.
In his reply brief, Henderson concedes that “[i]n the middle of the case, the passage of Proposition 64 invalidated the [unfair competition law] cause of action.”
Henderson responded by requesting leave to amend his complaint to “assert[] a cause of action under the Consumer[s] Legal Remedies Act which would entitle [him] to injunctive relief in almost identical fashion as the [unfair competition law].” The Consumers Legal Remedies Act is a nonexclusive statutory remedy for unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result in or which results in the sale or lease of goods or services to any consumer. (Wang v. Massey Chevrolet (2002) 97 Cal.App.4th 856, 869.)
The trial court granted the motion for judgment on the pleadings without leave to amend because Henderson “ha[d] not complied with the class certification statute.”
On appeal, Henderson argues that the trial court abused its discretion in refusing to grant him leave to amend to state a cause of action under the Consumers Legal Remedies Act. Not so.
At the time of the trial court’s ruling on April 14, 2006, there was dicta from the California Supreme Court that insurance was neither a good nor a service within the meaning of the Consumers Legal Remedies Act. (Civil Service Employees Ins. Co. v. Superior Court (1978) 22 Cal.3d 362, 376.) Notwithstanding this dicta, however, Henderson points out that the issue of whether insurance is a good or a service that is subject to the Consumers Legal Remedies Act is currently pending before the California Supreme Court (Fairbanks v. Superior Court (2007) 154 Cal.App.4th 435, review granted Nov. 11, 2007, S157001), so he “may well have stated a legitimate cause of action under the [Consumers Legal Remedies Act].”
This is not sufficient for Henderson to carry his burden to demonstrate how the complaint may be amended to state a valid cause of action. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Rather, Henderson must convince us by reasoned argument with citations to authority that insurance is a good or a service covered under the Consumers Legal Remedies Act. It is insufficient to claim, in essence, that because down the road the California Supreme Court may agree with his assertion, the trial court abused its discretion. For this reason, Henderson has failed to demonstrate in this court that the trial court abused its discretion in refusing him leave to amend.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: BLEASE, Acting P.J., HULL, J.
We note that Proposition 64 amended the unfair competition law to limit standing to sue under the law to government prosecutors or a “person who has suffered injury in fact and has lost money or property” as a result of unfair competition (Bus. & Prof. Code, §§ 17535, 17204) and, if acting on behalf of others, has satisfied the class certification requirements set forth in Code of Civil Procedure section 382. (Bus. & Prof. Code, §§ 17203, 17535.) Proposition 64 became effective on November 3, 2004. (Cal. Const., art. 11, § 10, subd. (a).)